Decision

Recognition Decision

Updated 5 May 2020

Case Number: TUR1/1137/2019

04 May 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

BMA

and

Ministry of Defence

1. Introduction

1) BMA (the Union) submitted an application to the CAC on 10 September 2019 that it should be recognised for collective bargaining by Ministry of Defence (the Employer) for a bargaining unit comprising “All civilian doctors employed or otherwise working for the MoD.” The CAC gave both parties notice of receipt of the application on 10 September 2019. The Employer submitted a response to the CAC which was received on 18 September 2019 and copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Chair of the Panel, and, as Members, Mrs Fiona Wilson and Mr Robert Lummis. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 3 April 2020 the Panel accepted the Union’s application. By e-mail dated 8 January 2020 the Employer confirmed its agreement with the Union’s re-defined bargaining unit, namely, “Clinical medical practitioners (“CMP”) and Civilian Consultants (“CC”). Those who held the job titles Medical Officer (“MO”) or Senior Medical Officer (“SMO”) were included in the bargaining unit. Those MoD employees who had the job title MO or SMO, who were not CMPs or CCs, were not in the bargaining unit.”

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

5) In a letter dated 3 April 2020 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 6 April 2020, stated that it did claim to have majority membership within the bargaining unit and therefore submitted that it was seeking recognition without a ballot. The Union stated that this was evidenced by the revised membership check, in which the level of union membership was over 50%. The Union further cited CAC case Unite the Union and Primopost (TUR1/869/(2014). Finally, the Union stated that none of the qualifying conditions specified at paragraph 22(4) of the Schedule applied.

4. Summary of the Employer’s submissions on the qualifying conditions

6) On 6 April 2020 the CAC copied the Union’s e-mail of 6 April 2020 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) In an e-mail to the Case Manager dated 14 April 2020 the Employer stated that based on the findings of the revised membership report dated 13 March 2020, which showed that the level of union membership within the bargaining unit was 51.48%, it did not dispute the Union’s claim to majority membership.

8) The Employer submitted that it would however ask that the Panel do not declare the Union to be recognised without first conducting a ballot. The Employer said that it was concerned that as a result of the fine margin by which the Union had a majority membership within the bargaining unit, and as membership of the Union represents more than just membership of a body to negotiate on their behalf (for example, by providing malpractice insurance), it believed that there was sufficient doubt as to whether significant numbers of its members within the bargaining unit would want the Union to conduct collective bargaining on their behalf. The Employer considered that to hold a ballot would be both in the interests of good industrial relations, and would resolve any doubts as to whether a significant number of the Union’s members within the bargaining unit want the BMA to conduct collective bargaining on their behalf.

5. Summary of the Union’s comments on the Employer’s submissions

9) The Union was invited to comment on the Employer’s submissions summarised in paragraphs 7 and 8 above. In an e-mail to the Case Manager dated 20 April 2020 the Union said it noted that the Employer’s request for a ballot was firstly due to the ‘fine margin’ by which the BMA had majority membership in the bargaining unit. The Union stated that it believed this was not a good reason to order a ballot as it would create a ‘higher hurdle’ than the ‘50% plus one’ test as specified in the Schedule and would be contrary to the will of Parliament. To demonstrate this point the Union relied upon CAC case ISTC and Fullarton Computer Industries Ltd (TUR1/29/00).

10) The Union said that the fact that there may be ancillary benefits to being a member of the Union was no different to the position of any other union, and it was not, in itself, a good reason to order a ballot. There was a long history of the BMA negotiating with the Employer for members of the bargaining unit and there was no atmosphere of mutual hostility or distrust. The Union said that this was further demonstrated at the hearing on the 5 December 2019 at which the parties cooperated and were able to agree the redefined bargaining unit. Furthermore, the parties were currently co-operating together over key matters at a time of national crisis. For example, a negotiation that took place between the parties very recently with regard to CMP’s hours of work being extended, was conducted in a very constructive way.

11) The Union stated that it believed a ballot would create further delay in a longstanding case, and that this could have a detrimental impact on relations between the parties. Furthermore, in the current unprecedented times, the members of the bargaining unit would have far more pressing and urgent matters to attend to and the requirements of a ballot may cause frustration and ill will, given the current demands upon their time. The Union considered that the build up to a ballot would also be likely to polarise the views of the parties and injure the good industrial relations that currently exists between the parties.

12) The Union concluded by stating that it believed a ballot would do far more harm than good in the circumstances and that therefore it should be awarded recognition without a ballot.

6. Considerations

13) The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

14) The membership check issued by the Case Manager on 13 March 2020, described in paragraphs 62-65 of the acceptance decision dated 3 April 2020, showed that 51.48% of the workers in the bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and is satisfied that a majority of the workers in the bargaining unit are members of the Union.

15) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

16) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by both parties. The Panel considers that there is no good evidence that a ballot would be in the interests of good industrial relations. On the contrary, there is already evidence of a history of longstanding negotiation between the BMA and MoD. There is already substantive evidence to suggest that a significant number of the union members within the bargaining unit want the union to conduct collective bargaining unit on their behalf. The Panel also notes the way in which both parties have successfully co-operated during these proceedings. Furthermore, the Panel are also concerned that the additional delay may, in itself, have a detrimental impact on industrial relations.

17) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

18) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

7. Declaration of recognition

19) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. Pursuant to paragraph 22(2) of the Schedule, the CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising, “Clinical Medical Practitioners (“CMP”) and Civilian Consultants (“CC”). Those who held the job titles Medical Officer (“MO”) or Senior Medical Officer (“SMO”) were included in the bargaining unit. Those MoD employees who had the job title MO or SMO, who were not CMPs or CCs, were not in the bargaining unit.”

Panel

Mr Rohan Pirani, Deputy Chair of the CAC

Mrs Fiona Wilson

Mr Robert Lummis

04 May 2020